‘SPEECH 




OF THE 

..*1 ,j •' 

HON. W. J GRAVES, 


ON THE 


CONTESTED ELECTION 

FROM THE 


STATE OF NORTH CAROLINA, 


Delivered in the House of Representatives onjSaturday,§March 26, 1836. 


♦ 


WASHINGTON : 


©BFFGREEN, PRINTER. 

1836. 



Mr. Speaker : I do not intend to question the motives of Gentlemen on 
this floor, but I shall speak plainly of what I believe to be the actual state of 
the case in reference to the question now under consideration. The friends 
of Mr. Van Buren constitute a large majority of the members of this House, 
and it is a known and acknowledged fact that they have, and when they 
choose do exercise by a call of the previous question the power of cutting off 
all debate and amendments which are calculated to test the sense of the 
House on all questions upon which they may chance to think it unadvisable 
to vote directly. 

The party to which I belong lays no claim to the power to discuss any 
question, except by the courtesy of the majority. We of the minority are 
strictly tenants at will of the majority, so far as relates to the power of 
protracting a discussion. I d© not know that I have any particular right to 
complain of an arbitrary exercise of this power as yet, and I do hope, not¬ 
withstanding some members of the majority have avowed a determination to 
call the previous question this evening, upon this subject, that there will 
not be a majority favoring that call. It is useless to disguise the truth upon 
this subject any longer, for although both the sitting member and petitioner 
were in favor of Judge White for the presidency, when they were canvass¬ 
ing for the seat for which they are now contending, yet I assert, and have 
good authority for the assertion, that the petitioner has changed, and is now 
understood distinctly by the friends of* Mr. Van Buren to be in favor of his 
election. And that pretences to the contrary notwithstanding, it has been 
obvious to every member here, that all parties, while they have foreborne 
publicly to speak out the whole truth upon this subject, from what seems 
to me to be false delicacy towards the petitioner* have been acting on this sub¬ 
ject since it was first presented lo the consideration of the House upon what 
is in truth and fact the case,—that the petitioner has changed and is now for 
Mr. Van Buren, and that the friends of Mr. Van Buren in this House have 
in turn received him into their arms, and have his case in their special keep¬ 
ing. I will not undertake to say that this change in the petitioner is not sin¬ 
cere and disinterested, nor will I question the motives of the present political 
friends of that gentlemen in extending to his claims their nurturing and 
paternal care ; for, sir, it is not only proper but absolutely necessary to the 


3 


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orderly* despatch of business, that the motives of members should not be 
impeached. 

But Mr. Speaker, whilst I claim to be influenced by proper motives, and 
feel that I am as much bound to deal out equal justice in this trial, as though 
I had gone to the table of your clerk, Sir, and had taken a solemn oath, in 
the presence of my God, to try this case according to law and the evidence, 
yet L candidly admit, what I beiieve to be true in reference to the feelings of 
every member in this House, that I have desired since my attention was 
first directed to this subject, to be enabled from the testimony in the case to 
give my vote in favor of him whose opinions approach nearest mine, on 
the subject of the next Presidency. I admit, Judge White is not. my first 
choice, but I much prefer him to Mr. Van Buren, and hence would prefer 
to see the sitting member retain his seat. The election of the next President 
will iikely come into the House of Representatives, a contingency for the 
peace and tranquillity of the country 1 hope never again to witness, in which 
evCut the election of President may turn upon the very question which we 
are now considering. Yes, sir. the election of the choice of the majority of 
this House, may possibly depend upon their giving the petitioner the seat 
for which he is contending. For all know, if the petitioner succeed, a ma¬ 
jority of the North Carolina delegation will be for Mr. Van Buren, whereas 
if the sitting member retain his seat, the majority of that delegation will be 
for Judge White. This, Mr. Speaker, is the exact length, breadth, and depth 
of this question, and though no member has before seen proper to avow the 
fact, none will deny that we have ail been acting upon it. If a majority of 
this House shall eventually feel themselves constrained to decide in favor of 
the right of the sitting member, it wiii be on the part of every one of that 
number who are in favor of the election of Mr. Van Buren an unwel¬ 
come task; and so on the other hand, if the political friends of the sitting 
member shall feel themselves constrained fiom duty to vote for the petitioner 
it will be to them a task equally unwelcome Hence follows, Mr. Speaker, 
in the contingency named, the peculiar and unprecedented importance of 
this contested election, and most unfortunately indeed are we situated to 
make an impartial decision. For both parties in this House have to 
combat their most ardent wishes, what they believe to be their best interest, 
and what all know to be their strongest prejudices,- in attempting to render 
themselves impartial judges in this cause. I am unwilling to believe that 
aoy member of this House is desirous to do any sort of injustice to 
either of, the parties. ]No ; God forbid that I should be so uncharita¬ 
ble as to believe any honorable member on this floor would perjure 
his conscience in the face of his country and sight of his God. But, 
Mr. Speaker, allow me most respectfully to suggest to all parties here, 
that l do not consider any of us will have done our duty on this subject, 
in being simply disinclined to do to either of the parties injustice, when we all 
see and feel and know the peculiarity and delicacy of our situations. We owe 
it to the importance of the subject before us, and to ourselves, and to our 
country, to be found in the use of every means of self examination which are 
calculated to render us as impartial as weak erring human nature will 
allow, and to march up to the discharge of our duties with a fixed and im¬ 
movable determination to do justice though the heavens fall. 

Suppose, Mr. Speaker, that we, the members of this House, were all to day 


4 


placed upon a trial involving our dearest personal rights, our liberties^ 
or our lives, that we saw a jury impannelled for our trial ; the feelings and 
immagined interests and prejudices of a majority of whom, having a 
power to make a verdict, were all against us, and } T et we had reason to 
think them honest, and that nothing was necessary to make our innocence 
appear, but some small portion of impartiality*, and attention to the facts of 
our case;—how anxious would he our desires, how deep our solicitude, 10 
procure the attention of those predisposed against us ! Mn. Speaker, the 
case I have supposed is in effect nothing more or less than the case of the 
sitting member in this contest with the petitioner. The party having the 
majority, has the power to decide this case just as they choose, and it is at 
their mere mercy that the minority have been allowed to debate this ques¬ 
tion. I therefore, if I had no other reason, would not asperse the motives or 
wound the feelings of any member of that majority ;—but an imperious sense 
of duty impels me to say, that about the middle of thi«'discussion evening 
before last, when one of the most .able and interesting debaters on this floor was 
addressing the House on behalf of the claims of the sitting member, that out 
of the one hundred and twenty odd seats on the east side of the main aisle, 
there were but thirty-seven filled, and of that number, Mr. Speaker, how 
many do you suppose there were of the political opponents of the sitting 
member? Seven sir! seven only! five of whom had either spoken against 
his claims or seemed to be preparing to speak. What must have t>een the 
feelings of the sitting member, surrounded as he was by such a spectacle? 
f shall never forget what mine were at the time, and can well imagine his; 
but least I should not be respectful in my language 1 will not attempt to 
describe them. I will, however, venture to say, I suppose they were about 
such as ours would be in seeing a jury sitting upon a trial involving our 
dearest rights, with known prepossessions against us, absenting themselves 
fr#rn the jury box at the most critical part of our defence. I say, Mr. 
Speaker, the only hope the sitting member has, is in the dispassionate and 
deliberate hearing of his political enemies; in the magnanimity and unbi¬ 
assed judgments of his triors; he knows his rights are in their hands; he 
knows they have the physical power to expel him from his seat, to give place 
to the petitioner. But if in their judgments he is entitled finally to no¬ 
thing else, he prays they will grant him the poor privilege of at least the 
forms of a fair trial; he implores them as his judges from whose decision, he 
has no.appeal, at least to he respectful in retaining their seats whilst his cause 
is heard. Though it is a poor, yet it is some satisfaction to an oppressed 
human being to know, that whilst the judge in whose hands his fate is placed 
is determined to immolate him though innocent, that the sacrifice is bought 
at a d^ar price! the dearest price that power ever paid for oppression,a guilty, 
an accusing conscience ! 

Not less than ten or twelve of the principal debaters of the dominant party 
in this House have joined somewhat at length in this debate in support of 
the petitioner’s claims, and if they rested upon tenable grounds, none can 
doubt they would have been occupied and well fortified. But, sir with great 
deference for those gentlemen, in my humble conception they have not 
advanced a single argument in support of the claims of the petitioner which 
can be maintained on principle. Let us then, sir, go into an examination of 
this subject. 


5 


The question to be decided by this House, sir, is, who from the 12th con¬ 
gressional district in North Carolina is entitled to the contested seat ? Our 
committee on elections is composed of nine members; five of them are the 
political friends of Mr. Van Buren, and the other four, placed on the com¬ 
mittee to make up the number nine, are politically opposed to him. They 
have been unable to agree among themselves as to who is entitled to the 
seat. The majority entertaining the same political opinions have reported 
in favor of the petitioner, and the minority in favor of the sitting member. 
And now it devolves on this House to decide which report is right. How, 
sir, are we to determine between them ? The answer is obvious There is 
but one way, and that is to look into both reports, see wherein they differ, 
and to take up each separate proposition upon which they could not agree, 
and determine with whom this Hoqs.e concurs. In order to attain this end 
my friend from North Carolina (Mr. Rencher), with whom I accord in opi¬ 
nion, agreeing with the minority on those points upon which they disagreed 
with the majority, has submitted to the House nine resolutions, all of which, 
except the first, if the blank in the last shall be filled with the name of the 
sitting member, assert the positions maintained by the minority in their re¬ 
port, and from which the majority dissent. The following are the resolu¬ 
tions. 

“ Resolved , That the depositions which have been communicated to the 
House by the Speaker, and laid on the table since the report of the Com¬ 
mittee on Elections was made whenever taken upon due notice, will be re¬ 
ceived by the House as testimony in this case. 

“2, Resolved, That the five votes votes taken from the commoners 
at the Franklin precinct in Buncombe county, and counted for the petitioner, 
ought not to be allowed. 

“3. Resolved , That the three votes which were stricken from the pe¬ 
titioner’s roll, by the judges at Ashville in Buncombe county, because it ap¬ 
peared by the return of the judges from th6 Henderson precinct that three 
of the votes given for the petitioner were given by voters living in Yancy 
county, and which have now been added to his poll by the Committee, ought 
not to be allowed. 

“4. Resolved , That two votes to wit, Robert Lankford and George 
Barkley stricken, from the poll of the sitting members by the Committee, on 
the ground that they voted out of their proper county., ought to be. restored, 
because there is no proof that they lived out of the county in which they 
voted. 

“ 5. Resolved , That two votes (to wit, Moses Pace and Andrew Morri¬ 
son), which were proven by parole testimony to have been given for James 
Graham, out of the county jn which they reside, and on that account 
have been stricken from his poll by the Committee, ought to be restored, 
because it does not appear from the poll books themselves that either of these 
men voted at the election. 

“ 6. Resolved , That William H. Milton ought to be stricken from the 
poll of the petitioner, because it appears he had not paid a public tax. 

<< 7. Resolved , That the five votes found on page six of the report which 
have been counted for the petitioner, but which were not given in at the polls, 
ought not to be allowed. 

“8. Resolved , That there is no evidence that these men were qualified to 


6 


vote, not having lived in the county where they offered to vote 12 months 
immediately preceding the day of election as required by the Constitution 
of North Carolina, or that they tendered their votes as required by the law 
of that State. 

9. Resolved , Therefore, that is entitled to a seat 

upon this floor, as a representative from the 12th Congressional District of 
North Carolina .” 

It is a little remarkable, Mr. Speaker, that there should have been a di¬ 
vision in our committee upon eight points, and in‘each instance it should have 
been exactly according to the political predilections of its different members. 
This strong, most remarkable and unaccountable coincidence is in itself an 
unanswerable argument why this House should in justice to the different 
members of its committee boldly m^rch up to this subject and express its 
opinion emphatically upon each of these propositions. If a majority of 
that committee have disregarded all political considerations in their action 
on this subject, and have acted solely with an eye to the eternal and unalter¬ 
able principles of truth and justice in their decisions, it is but sheer justice 
to them that the sense of this House recorded upon its journals, which by 
the constitution is required to be kept as a living witness of the action of this 
House whether for good or for evil, should be expressed in support of their 
decision if it be correct. And, sir, upon the other hand it is most especially 
due to the minority under the peculiar circumstances of the case, if they have 
triumphed over their party predilections, and like honest men have discarded 
all considerations except that of duty and a firm immovable resolution, to 
do justice for truth’s sake, that they should have an expression of the sense 
of this House given to them in this most critical and embarrassing emergency, 
approving their decisions. These resolutions, sir, it seems to me present 
the most simple and natural mode of arriving at a proper, fair and intelligible 
decision of the issue thus formed by the conflicting reports of our commit¬ 
tee. And yet as soon as those resolutions were submitted, a gentleman from 
North Carolina (Mr. Bynum), one of the most prominent debaters of the 
party dominant in this House, and particularly on behalf of the claims of the 
petitioner, sprang from his seat and protested most warmly and earnestly 
against their reception or consideration by the House, and amongst many 
other reasons he urged they were calculated and designed to draw us from 
the true and real question, and that he had anticipated the movement from 
the first coming in of the report ; ana that as the only objects of committees 
are to examine into the details of business and report to the House general 
results, we should act upon that report and have independence and self re¬ 
spect enough to sustain it. He further added that a body, composed of two 
hundred and forty members as this House is—ought not to think of attempt¬ 
ing to settle these points, which after months of labor our committee could not 
agree upon, and that if we do, it will require months. He warns this House 
that the last Congress in attempting a course of this kind, in the case of Moore 
and Letcher, gave so many conflicting decisions that it got into inextricable 
difficulties, and was compelled at last to say it knew not who was elected, 
and to refer the whole matter back to the people ; and he implored us in 
conclusion, if we had any self respect, not to vote upon these resolutions, 
for the purpose of avoiding the responsibility of the true issue, but to march 
up to the report of the committee, and meet the responsibility of the whole 
case at once. 


7 


Now I think, and surely I shall meet with but little difficulty, in proving 
that a direct vote of the House upon each one of these resolutions, is the 
best possible means which we can adopt to conduct our minds to a correct 
conclusion upon the subject. As however the propositions embraced by the 
fourth,fifth and sixth resolutions involve only five votes, which in noevent can 
change the final result, and as they depend on evidence from which different 
conclusions might possibly be drawn, I do not propose to discuss them at 
much length, although I concur in opinion with the minority in reference to 
them; as I firmly believe, and think l can demonstrate to every impartial 
man who will give me his attention, that the positions assumed by the second, 
third, seventh and eighth resolutions from which the majority of the com¬ 
mittee dissent are undeniably true; and if so, they take from the poll of 
the petitioner thirteen votes, and a& the majority report him elected, inclu¬ 
ding those thirteen votes by but twelve, it will follow that the sitting member 
is entitled to the seat by one vote. 

The ghosts of the dilemma into which that gentleman and his political 
friends had the misfortune to get themselves last Congress, in the case of 
Letcher and Moore, seems so to haunt his imagination, that I am apprehensive 
we shall not get him so cooled down, as to take a dispassionate, impartial, 
and common sense view of this subject. If however, that object could be 
accomplished, I flatter myself that he could be brought to believe, that this 
House, consisting of two hundred and forty members, as it does, is quite 
competent to give a decision on these resolutions, by which it is asserted, 
that a majority of the committee erred in adding to the petitionir’s poll the 
thirteen votes named therein. Upon them we are simply called on to vote 
yea or nay. 

The report of the majority of the committee solemnly asserts,that all the tick¬ 
ets in the commoner’s box, at the Franklin precincts in Macon county, having 
the name of the petitioner on them should be added to his poll; the report of the 
minority rejects all such votes. In the case of Washburn vs. Ripley, reported 
in Hall and Clark, page 679, this House decided this exact point, and that 
against the principles of the report of the majority, and in support of those of 
the minority. True sir, we are not absolutely bound by the former decisions of 
this House, if they shall be thought wrong. Let us then examine into the rea¬ 
son and propriety of such a principle. In many of the States nearly all thier 
officers are elected at the same time in ^ome of them, where they voje by ballot, 
they elect as many as nineteen officers at the same election; and have a sepa¬ 
rate box for each officer, every voter has his nineteen tickets, to drop into 
the nineteen different boxes, for the nineteen different officers for whom he 
is entitled to vote. No mortal but the voter has a right to know the name 
which he has written upon his ticket, and if he has a particular friend, a can¬ 
didate for Congress, he can place his name upon the whole number of his 
tickets, and thus give him just as many votes as there are officers to elect, 
if we allow every ticket found in the different boxes to be added to the poll 
of that man whose name m .y be found on it. Thus by such a course two 
hundred and fifty voters might give to their friend forty seven hundred and 
fifty votes ; a sufficient number to elect a member to Congress in almost 
any district in the United States. To establish such a precedent would be 
to open a door to innumerable frauds and contested elections. But in addi¬ 
tion to this it sometimes happens, and that too in the very State from whic 1 


8 


this contested election comes, that the same individual is voted for, in differ¬ 
ent boxes, for different offices, and elected both to the House of Commons, or 
State Legislature, and to Congress. It has once occurred, as we are informed, 
in the case of one who is now a member on this floor from that State. 

But, sir, in addition to the reasons arising from the consideration that the 
same man may be voted for at the same election as a candidate for the House 
of Commons, and for Congress, and the unparralleled frauds to which itwould 
afford such great facilities; there is this additional fact in the present case, 
that, according to the tally, or list of names, kept by the clerks of the elec* 
tion, at Franklin precinct in Macon county, whose duty it was to record the 
name of every voter who hands in his ticket, there were at that precinct 
precisely four hundred and forty-five names recorded as having voted for 
Congress, and that exact number of tickets found in the congressional box, 
showing most conclusively, that the tickets found in the commoner’s box 
with the petitioner’s name on them, could, either not have been designed as 
votes for him for Congress, or if so designed, they were grossly fraudulent. 
For these, amongst other reasons, the minority of the committee say those 
five votes ought not to be added to the poll of the petitioner; but the ma¬ 
jority say they ought to be added to hfs poll. The second resolution 
embraces this exact question, and I seriously ask is there a man* who is not 
blinded by party prejudices who can for an instant doubt upon the question 
whether the majority or minority is right. 

The gentleman from North Carolina, (Mr. Bynum), says, the duty of a 
committee is to examine into the details of business and present points and 
general results. Here then they have examined into the subject and without 
disagreeing as to the facts, have presented the conclusions to which they 
have come, and the points on which they differ. Yes, sir, in the language 
of the gentleman they have presented a general result, which is that on an 
agreed state of facts their conclusions differ, and we are called on to decide by 
a vote who is right. The gentleman from North Carolina (Mr. McKay), 
who has argued this case on behalf of the petitioner more at length, admits 
the majority of the committee were clearly wrong in thus tranferring those 
five votes from the commoner’s to the congress box; and it is o-ur duty to 
decide by approving or disapproving the second resolution; and, sir, I appeal 
to gentlemen not to evade but meet the question fully and fairly. 

The next point upon which the minority and majority differ, is as to the 
votes of Oliver Ci ok, John VV. Hopper, and YVm. Hooker, embraced by 
the third resolution. The majority, in their report say upon this subject, 
that “ The law of North Carolina gives no power to the judges at any one 
place of election to strike off votes, or in any manner after the return of the 
judges of any other place of election* nor could the judges at the Hender¬ 
son precinct, after taking the votes as legal, decide themselves, or authorize 
the judges at Ashville to decide that they were illegal. Having been re¬ 
ceived at the time of the election, the petitioner is entitled to them, unless 
they are proved to be bad. “No such jproof was presented f.” 

The minority in their report say “It appears in evidence, that at Hen¬ 
derson presinct, Buncomb county, three persons, residents of Yancy county 
were allowed to vote on condition that if it should afterwards appear to be an 
illegal extension of the right of suffrage, the votes were to be deducted 
from the polls. Opposite the names of the persons so voting was written 




9 


“Yancy;” on the back of the poll list was an indorsement by the judges, to 
which their names were affixed, that these persons from Yancy had been 
allowed to vote. These three votes were deducted by the returning officer 
at Ashville, from the poll of Newland, on whom it is proven they were 
bestowed, and in the opinion of the undersigned, rightfully. But whether 
rightfully or not, in regard to the persons by whom it was done, they would 
have been deducted according to the principle unanimously adopted by the 
commitee, &c.” 

Now, without mooting the question whether the sheriffs, who compared 
the polls at Ashville, had a right to strike off those three votes from the 
petitioner’s poll, it is most obvious, that according to the principles unani¬ 
mously settled by the committee, of striking from the polls of both parties, 
all such votes as were given out of the county in which the voter lived : the 
committee ought hot to have added these three votes to the petitioner’s poll 
as it was most clearly proven they lived in Yancy and voted in Buncomb 
county. This has been alluded to by but one gentleman, who has advoca¬ 
ted the claims of the petitioner, and he (Mr. McKay) has candidly 
admitted the report of the majority is in this particular wrong; for he 
acknowledges that it cannot be denied that it was clearly proved by 
the certificates of the judges at the Henderson precinct, in Buncomb county, 
who took the three votes, that the voters lived in Yancy. And that in 
addition thereto the cross-examination of M, P. Patton, one of the judges, by 
the petitioner convinced him beyond a doubt that those three voters did 
live in Yancy. After the witness, Patton, had deposed as to the county in 
which these persons lived and voted, the following two questions were put 
to him by the petitioner: 1st. “ Is not Yancy county one of the 
counties of which the 12th Congressional district is composed?” 2d. “Did you 
understand that these voters labored under any other disability than that they 
were citizens of Yancy county ?” 

I ask is it not shocking to the human understanding, after such proof, and 
such downright admissions, that a majority of a committee of this House 
should report that a no such proof was presented” as that those three voters, 
Cook, Plopper and Hooker, lived in Yancy, and voted in Buncomb? 

Now, sir, I appeal to the petitioner just to my left to rise from his seat 
and say whether he does not know the fact, and whether he did not distinctly 
understand himself as admitting by his interrogatories which I,have just 
named that Yancy county was the pfikee of residence of these voters at the 
time of the election ; and further, sir, if he were then mistaken, let him 
now correct the error, and I for one will take his assertion as conclusive on 
the point. I pause for a reply.—I am told to proceed by the gentleman from 
Rhode Island (Mr. Pearce) who spoke so warmly in support of the claims 
of the petitioner ; he seems disinclined to hear the answer, but I hope I 
shall be favored with a reply.—The petitioner seems to be in consultation 
with his friends, which I hope will terminate in his being advised to re¬ 
spond to my inquiry. He declines it. I ask, sir, whether incredulity itself 
can longer doubt that these voters at the time of the election, did live in 
Yancy county and vote for the petitioner in Buncomb county ? And if so, 
can it be possible that any man honored with a seat upon this floor with a 
full knowledge that several legally qualified voters living in the congres¬ 
sional district, had their votes stricken from the poll of the sitting member 


10 


by the unanimous decision of the committee for voting out of the county 
in which they resided, can be so blinded by party prejudices, as longer to 
contend for the report of the majority of the committee by which those 
three votes are added to the poll of the petitioner. 

[Here Mr. Williams of N. C. intimated a wish to submit a motion to ad¬ 
journ, for which Mr. Graves yielded the floor; whereupon Mr Vanderpole 
of New York asked for the yeas and nays, which were ordered, and 
the motion to adjourn was lost.] 

I yielded the floor, Mr. Speaker, fora motion to adjourn, not that,I was 
disinclined to proceed now, but from a belief that it was the pleasure of the 
House, after a session of six hours, to adjourn at this time. Upon that mo¬ 
tion the yeas and nays were ordered at the instance of the friends of the peti¬ 
tioner’s claims; and whilst the clerk was calling the roll, I ascertained there 
was a determination on the part of some to press the previous question, and, 
sir, it was with deep regret and unmeasured mortification, from the strictly 
party vote which has just been given, that I have been driven into the con¬ 
viction that the decree has gone forth; that the call for the previous question 
will be sustained; and that the majority of this House is resolved this night 
to expel the sitting member, and that too without incurring the responsi¬ 
bility before this nation of voting down these resolutions. The fate of the 
petitioner I fear is sealed; but, sir, that will not drive me from my purpose; 
I will not desist from my proposed course of remarks, as useless soever as 
they may prove. 

Let us then, sir, attend to a brief examination of the propositions embraced 
by the seventh and eighth resolutions. If the principles they assert be cor¬ 
rect, then the minority is also right, and the majority wrong, as it relates to 
the five votes 'that were added to the petitioner’s poll, but which were ne¬ 
ver actually given; in which event this subject is ended and the right of the 
sitting member is incontestible. 

The judges of elections in North Carolina, as in other states, are selected 
for their presumed integrity, and knowledge of their duties, from the vici¬ 
nage # of the place at which they preside, in order that they may be the bet¬ 
ter enabled to judge of the qualifications of those who may tender their 
votes; and it is their imperious duty when they doubt the qualifications of 
a voter not to allow him a vote unless he will swear that he is qualified un¬ 
der the constitution, and that he has not voted before at such election. Act¬ 
ing in obedience to the obligations of duty, the judges, doubting the right of 
five persons who tendered their votes, refused to allow them to vote unless 
in obedience to the express law of North Carolina they would make oath to 
their qualifications: this they did not do; and hence had no right, under the 
law of North Carolina, to vote. But further to exemplify the correctness of 
the decision of the judges, in rejecting those four voters, let it be remembered, 
that the gentleman from N. Carolina, (Mr. M’Kay) who seems to have labored 
this case more than any other one on behalf of the claims of the petitioner, 
acknowledges that from a thorough examination of the depositions in the 
case he is bound to admit that four out of the five who tendered and 
were refused their votes for the petitioner, were actually not qualified 
voters. This explains why they did not avail themselves of the provi¬ 
sions of the law by taking an oath to their qualifications as voters. That 
Gentleman had the candour further to admit that the inclination of his mind 


11 


was against adding to the poll of the petitioner any votes that were not 
actually given, even it those offering had been duly-qualified to vote, but 
iemarked that he had uuderstood this House had settled that question against 
bis opinions; and that he must of course yield to the authority. Now I as¬ 
sert that np such authority can be shown; but that in the case of the contested 
election from the Territory of Michigan, between Ewing and Biddle, an 
opposite principle was settled by the unanimous report of the Com¬ 
mittee ; which was not reversed by the House. The following is the 
language used in the report in that case : a The committee are of opinion that 
the duty assigned to them does not impose on them an examination of causes 
which may .have prevented any candidate from getting a sufficient number 
of votes to entitle him to the seat. They consider that it is only required 
of them to ascertain who had the greatest number of legal votes actually 
given at the Election.” And I venture to say it never will be re¬ 
versed, by any enlightened legislative body, unless sinister influences 
are brought to bear on it. Under this authority the Gentleman from 
North Carolina will feel constrained to adhere to the inclinations of his 
own opinion ; and to admit that the report of the majority has erroneously 
added thirteen votes to the petitioner’s'poll, viz , these five who never u actu¬ 
ally voted,” and the three who lived in Yancy and voted in Buncomb, and 
the five changed from the commoner’s to the congressman’s box ; and as 
their report elected him by but twelve votes it follows that the sitting mem- 
member must be elected by one vote; to which the weight of evidence com¬ 
pels us to add the four votes embraced by the fourth and fifth resolutions, and 
stricken from the poll of the sitting member, without sufficient evidence of 
their having been given out of the county in which the voters lived. 

Mr. Speaker, I do not wish to be considered as illiberal or ungenerous in 
my exactions,and although it is not considered exactly courteous in these days 
of whole-hogism to draw too heavily on the candour of a political opponent, yet 
I do trust as we are presiding in this case as judges who should stand aloof from 
party preferences I shall be excused for urging on the gentleman from North 
Carolina (Mr. Me Kay) that as the report of the majority of the committee 
gave the contested seat to the petitioner by a majority of twelve votes, and 
as he has had the candour to admit, that they have erroneously added to his 
poll the thirteen votes embraced by these propositions which I have discussed; 
that he will consider the* sitting member is according fo his own-showing 
.elected by one vote, to which if I am right in reference to the foruth fifth, 
and sixth resolution, we must add five more. (Here Mr. Me Coy explained 
by saying by hip calculation he still elected the petitioner as he considered the 
committee had unanimously taken two votes from his poll which ought not 
to have been done.) I, Mr. Speaker, have not attempted to examine into 
the 300 pages of testimony appended to the report of our committee, as 
they rejected the most of it as irrelevant or hearsay evidence ; but have 
taken as correctly settled all the points upon which they were unanimous 
and have only directed my examination to the points on which they disa¬ 
greed. The honorable gentleman is the only member on this floor who 
has said a word, or once thought, as far as I am advised, of wading through 
the immense volume of testimony to satisfy himself whether the vote of A 
or B was correctly or incorrectly striken from the polls of either party by 
the unanimous consent of the committee ; and, Sir, as* it is now night and 


the decree has gone forth from that power which is omnipotent in this Hotfse 
that this case must be finally settled before we adjourn, I must prootest 
against opening and investigating points which were unanimously settled 
by our committee after weeks of diligent labour and examination. It how¬ 
ever the majority of this House will now consent to adjourn and give time 
to go into an examination of this case, I am perfectly willing to do it, as I am 
in search of truth, and shall persue it lead where it may. The sitting 
member however of all men, would have least to fear from this course. I feel 
fully convinced by the decisions of the majority of the committee upon the 
three propositions to vyhich my remarks have been mainly directed that it never 
intentionally settled a principle by unanimous consent which disallowed to the 
petitioner votes justly belonging ta him. Situated however as we are, under ab¬ 
solute compulsion to end this subject to night, it seems to me that we shall 
most likely arrive at truth and do justice to the parties by investigating those 
points only whereon the majority and minority differ ; abstaining from 
unsettling points settled by the unanimous consent of our committee. Be¬ 
fore however I leave the gentleman from North Carolina (\Ir. Me Kay) I re¬ 
turn him my acknowledgments for the general candor that characterized 
his admissions in reference to those thirteen votes, and congratulate him on 
the very lucid argument by which he must have convinced every member 
who gave him attention, of the correctness of his opinions. 

The gentleman from Ohio (Mr. Hamer), who followed on the same side 
in favor of the claims of the petitioner, did not attempt to controvert one 
single position, which the gentleman from North Carolina assumed; he well 
knew they could not be controverted. And after an able and lengthy ar¬ 
gument against reading in this case the testimony which was printed by the 
order of the House, and laid on the table of each member about four weeks 
since, he remarked he would not detain the House by giving his own views 
upon the points discussed by his friend from North Carolina, as he had pre¬ 
sented an able and perspicuous exposition of them. To understand the full 
force and effect of this well merited compliment, we are naturally led to en¬ 
quire what were the arguments of that gentleman. They were proof to 
demonstration, that the five votes changed from box to box, the three given 
by the citizens of Ysncy county in Buncomb county, and the five who ten¬ 
dered their votes but were refused, making in all thirteen, were erroneously 
added ten the poll of the petitioner, by the report of the majority of the Com- 
# mittee. As then that report, notwithstanding the improper addition of those 
thirteen votes, only elects the petitioner by twelve, it follows ihat if those 
thirteen be deducted from his poll, that the sitting member is elected by one 
vote, so that the gentleman from Ohio, by adopting the argument of the gen¬ 
tleman from North Carolina will find himself constrained to vote for the 
sitting member. [Mr. Hamer arose to explain, and said he did not intend 
to be understood as adopting all the views of the gentleman from North 
Carolina.] 

I am willing to accept the explanation of the gentleman, but stiff 1 am 
not enlightened : I do not yet understand to which of the views of the 
gentleman from North Carolina the gentleman from Ohio excepts, and which 
he adopts. When in the argument of a cause, one counsel waives the dis¬ 
cussion of certain points because of the able argument of a colleague who has 
preceded him on the same side, and compliments that argument as able, 


learned, and lucid, it is natural to conclude as I did in this instance, that he 
adopts this argument as his own, and that his adversary would have a right 
to treat it as such. For, sir, in the view I had taken of the subject it 
really appeared to me, if the gentleman had not designed to adopt the argu¬ 
ments of the gentleman from North Carolina, upon the three points which 
I have been discussing, depending as this case most obviously does upon 
them, that the usual course would have been to have controverted and re¬ 
sisted his positions, rather than to have passed over the points because they 
had been so fully and ably discussed by his colleague. Whenever I, in the 
argument of a case, shall feel myself called on to compliment the able 
and learned argument of a colleague, and decline entering upon a discussion 
of the same points in consequence of the ability with which they had been 
debated, and it is afterwards shown that according to those arguments the 
case is against me, I would consider long and well, whether I would not for 
sake of appearances, either avow a change of opinion, or give up the case 
rather than place myself in an attitude so equivocal as that of claiming to 
have had a mental reservation as to such as operated against my cause. But, 
sir, whilst I avow what my course under certain circumstances would be, 
far, very far am I from wishing to dictate to others what they should do 
under similar circumstances. 

Now, Mr. Speaker, I really should be pleased to know whether there is 
another one out of the whole number of members here, who concurs in opi¬ 
nion with the Gentleman from North Carolina, (Mr. Bynum), that a deci¬ 
sion by this House upon the points on which the reports of the majority 
and minority differ, in other words, a vote on these resolutions, is calculated to 
draw us from the true issue. Yes, sir, I should be pleased to know if any other 
Gentleman really considers that a decision upon the only material pouits in 
the cause, is a shrinking from the responsibilities of our station. That Gen¬ 
tleman further adds, that instead of talk about a willingness to meet the re^ 
sponsibility of the real issue, he wishes to see the House meet by its acts, 
and not words, the true issue, and have independence enough to sustain the 
report of the majority of the committee. Now, no man will more heartily 
than I join the Gentleman in his exhortations to the House to be independent, 
but I wish that independence to be exercised in a manly resistance to party 
tactics and in a conscientious discharge of their duty. It requires, no great 
share of independence in times like these, for a member to act with his par¬ 
ty, but it does require much of it, and that too, of the sternest stuff, to break 
the. tyrant chains of party; and to do justice regardless of eonsequenees. And 
sir, it is to this worthy purpose I invoke independence on the part of all.— 
The Gentleman thinks the House, unless it is unmindful of self-respect and 
the difficulties that ensued in the Letcher and Moore case from a proposition 
similar to these resolutions, never can, or will consent to act on one of them. 

I, sir, had not the honor of being a member of the last Congress; the Gen¬ 
tleman from North Carolina had; hence the liberty he takes in criticising the 
conduct of that body. 

He then was where it is his good fortune now to be, in a large majority, 
who could and did decide every question as they chose, and who decided 
the Letcher and Moore case accordingly. The last Congress sat as a judi¬ 
cial tribunal in that case, just as we are sitting in this. And, sir, without 
intending by any means to reflect on the course which that Congress chose 


14 


to adopt in that ever memorable case, I will observe that if I, as a judge of 
a court of justice from which there was no appeal, had on the several points 
which arose during the progress of a case, given decisions that were so con¬ 
flicting and contradictory, that I could give no final judgment without render 
ing myself still more inconsistent and ridiculous, and therefore felt con¬ 
strained 'to turn the parties out of court, it would be to me, a source of the 
deepest and most enduring mortification. But if, sir, after such a decision I 
should retain my seat, or should be again elected to the bench, and a similar 
cause were to come before me, and 1 should refuse to deliver m} r opinions 
on the incidental questions presenting themselves during the progress of the- 
trial, upon the alleged grounds, that I knew they would prove as before con¬ 
flicting and contradictory, and I should thereby be compelled to throw it out 
of court as on a former occasion, I should be the last man to brag of a 
great readiness and willingness to meet the responsibilities of my station, 
or to charge the helpless litigant who was placed in my power with a design 
to draw me off from the true issue in the cause, because he asked my opi¬ 
nion upon some incidental legal question regularly presented before the hear¬ 
ing of the cause was over. That a vote of the House directly upon each ®f 
these resolutions should be thought to be a shrinking from responsibility, is 
really a novel idea ; and through what avenue such an one ever entered the 
head of mortal mar. is with me altogether unaccountable—it is about as strange 
as the other idea, that this House, because it consists of two hundred and forty 
members, is incapabfeof maintaining its consistency long enough to express its 
opinions upon the nine simple propositions contained in these nine resolutions. 
If this House were under any physical or political necessity to vote on the last 
resolution, for oxe or the other of these parties, then truly we could not 
safely fallow the dictates of our judgments on the others, and at. the same 
time rpaintain our consistency. But if we are free to follow our judgments 
in the path of duty, lead where it may, there is no difficulty. Truth is 
always consistent; and a pure witness in a court of justice A hose object is 
to speak the truth, will answer yes or no to a thousand questions without 
ever contradicting himself,, though he be the-'humblest and most untutored 
peasant in the land; for there is no complexity in truth ; it is simple, and is 
understood as well by the ignorant as the learned. If then the object of 
this House be justice and truth, is it fearful of expressing its opinion for or 
against these nine resolutions ? Is there a man on this floor who has not an 
opinion made up and who is not ready tq vote yea or nay on each proposi¬ 
tion ? \Vho‘ishere that has not an answer made up to these questions ? 
1st. Will you add to the petitioner’s poll the five tickets with his name on 
them found in the commoner’s box ? 2d. Will you add to his poll the three 
rotes given in Buncomb by voters living in Yancy county? ad. Will you 
add to his poll the votes of the five who did not actullyvote ? No one 
I suppose. If these interrogatories are answered in the affirmative, then 
the petitioner is elected to the seat; if in the negative, thenthe sitting memb 
is elected to it. 

Mr. Speaker, we are sitting here as a judicial tribunal to determine high and 
important rights between two individuals claiming a seat amongst us. Yes, 
sir, sitting as judges of one of the highest tribunals known to our laws act¬ 
ing under the most solemn obligations that can be imposed on moral agents. 
We should rise above all party and petty considerations, and look only to the 


15 


justice and merits of this subject. Our attachments to this, that, or the other 
candidate for the presidency should be swallowed up and lost sight of in the 
high and solemn duties which the constitution of these United States imposes 
on ns. The minority of the committee and of this House who concur with them 
in opinion, know in tb^ government the opinion of the majority is prima facie 
the governing test of political authodoxy, and that as thereis a large majority 
against them op-mis question, and in favor of depriving the sitting member 
of his seat,th«y must stand before the world as being in error; yes sir, error, 
which considering the high party times may be attributed to corrupt motives. 
We of the minority therefore, resting in the firm conviction that our motives 
are p u, ’eand that our opinions are correct, and will bear the test cf the severest 
scrutiny in time to come, when honesty and truth shall have outlived the 
spirit of spoils and plunder, and the mania for office shall have abated, 
ask the poor privilege of asserting upon the records of this House, the 
grounds which are embraced in these resolutions, and upon which our opinions 
were formed, and that we may by a call for the yeas and nays, record our 
names where we hope our children will not blush to find them, when we 
and the party excitement of the day shall have passed away and are number¬ 
ed with things that once were ! Yes, sir, and when the expunging process 
shall have reached this House, I for myself and on behalf of the minority 
with whom 1 act, pray in mercy to us and those who are dearest to us, that 
those resolutions with our names recorded in their support may net be ex¬ 
punged. If, Mr. Speaker, gentlemen think the converse ol these resolutions 
are true, are they ashamed or unwilling to record their names in support of 
truth ? I say if they are honestly impressed that these resolutions assert un¬ 
sound positions, can it injure them to record upon the journals of this House 
this opinion, a test by which posterity may judge of their sincerity and ho¬ 
nesty ? It would degrade the character of the savage, much less the civilized 
man, without an -object to grind to the dust by the strong arm of force such 
as are in his power. But, sir, in the decision of this case this House not 
only owes it to the minority of the committee and to a minority of its 
own body, but to every free citizen who may aspire to a seat here, and to the 
whole nation, as a measure of economy, to settle these questions by a direct 
vote, and thereby save the expence of much discussion that may arise in 
time to come in other contested elections. And why is it yet refused? It is not 
for me to say; there however is an object in it;.,man acts not without an ob¬ 
ject. I see before me a member of the majority famed for briskness upon 
the heel , (Mr. Cushman from New Hampshire), who ha^s changed .his,seat 
and stationed himself here in order as he openly avows to catch the speaker^ 
eye and call the previous question as soon as I am through. I will not attempt 
to comment on such a course; I can not do it in language that would be re¬ 
spectful to the House. By the theory of this government a majority have the 
political right to govern, but not the moral right to do it with an iron rod. 
But, sir, let us proceed. A just judge, from whose opinion there is no appeal 
when he knows he is surrounded by circumstances that are calculated to draw* 
the eyes of the community to his motives, will never refuse to give the rea¬ 
sons of his decree, least he should contradict himself. I feel that we are 
fiovv sitting as judges be 1 ween two applicants of different political opinions 
for a seat here. That we are to decide between these parties surrounded by 
circumstances strongly calculated to subject our decision to the imputation 


16 


of partiality. And from the fact that the election of the next president may 
depend on the man who shall get this seat, the ey?s of this whole nation are 
fixed on us, which if possible enhances the responsibility of oursituation. . As 
great soever as this responsibility, under the peculiar circumstances of this 
case, may be, the constitution has devolved it on us, and it must be met. 

I am prepared to meet it. My judgment is already formed, and is founded 
on reasons that are not inconsistent with themselves, that do not conflict 
with each other. I am of opinion that the siting member is entitled to this, 
seat, and I give to the nation my reasons for that opinion in the language of 
these resolutions. If these resolutions assert what is untrue, those who vote 
for them are the authors of their own disgrace, by spreading upon the journals 
of this House, not only a falsehood, but the evidence to detect them in it, the 
printed .depositions in thiscause. And, sir, upon the other hand, if they assert 
truths, selfevidently apparent from the proof and the two reports, let those 
who have the hardihood to vote against them, meet the just responsibility 
of their own acts. If, Mr. Speaker, the majority with which you stand here 
identified are not ashamed of the course which you intend to pursue 
in this contested election, why is it that you refuse to spread upon your 
journals, by the side of the testimony in this cause, your votes upon each 
branch and division of this subject! Why is it, I say sir, that the previous ques¬ 
tion is to be this night called, and used as an odious engine of opression, to take 
from the minority the right to record upon the journals of this body the 
grounds upon which they predicate their vote, that the people of these 
United States may know the principles upon which they act and the motives 
that influence them. If those resolutions are not cut off by the previous 
question, the sitting member has nothing to fear; for, sir, the power of party, 
mighty as it is, cannot bring a majority of this House up to the point of 
voting down these plain, simple, and incontrovertible propositions, in op¬ 
position to the positive,'uncontradicted, unimpeached and unimpeachable 
printed testimony spread upon our journals. 

Sir, if the decree have gone forth that the sitting member is to be ex¬ 
pelled this night, which I row think is loo obvious, it is not less irrevocably 
decreed that these resolutions are to be cut off, and no vote taken on them. 
If this act is destined to close this degrading scene, the present darkness 
of the night, from its analogy to the deed, is well suited to the occasion ! 

These, Mr. Speaker, are truly strange times! they have put at defiance all 
those rules, which from the beginning of the world tq the present period 
have influenced and regulated the actions and intellect of men. For though 
it seems to me if the case were closed here the sitting member would be 
entitled to his seat, yet I do not feel authorized to decline my original 
purpose of presenting to the House other distinct grounds on which it 
seems to me he can safely rest his case, if the minority have even been 
wrong upon every point on which it differed from the minority. They are 
tne depositions that were not before the committee, but which were printed 
by the order of this House and laid on the table of each member upwards of 
three weeks since. All admit if these depositions should not be excluded, 
the case is decidedly in favor of the sitting member; hence, we can 
account for the spirited and earnest objection to receiving this evidence. 
Let us for a short time, Mr. Speaker, analyze patiently and coolly the ar¬ 
guments of those gentlemen who have opposed the admissibility of these 
depositions. 




